Citation Nr: 1502043
Decision Date: 01/15/15 Archive Date: 01/27/15
DOCKET NO. 12-23 987 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama
THE ISSUES
1. Entitlement to a rating in excess of 10 percent for bilateral pes planus with a history of plantar fasciitis.
2. Entitlement to a rating in excess of 10 percent for gastroesophageal reflux disease (GERD).
3. Entitlement to a compensable rating for seborrheic dermatitis.
4. Entitlement to a compensable rating for periodontal disease.
5. Whether new and material evidence has been received to reopen the previously denied claim seeking service connection for chest pain.
6. Whether new and material evidence has been received to reopen the previously denied claim seeking service connection for a cervix disability.
7. Entitlement to service connection for chest pain.
8. Entitlement to service connection for a genitourinary disability, to include a condition of the cervix, fibroid tumors, and irregular menstrual cycles.
REPRESENTATION
Veteran represented by: Jeany Mark, Attorney
ATTORNEY FOR THE BOARD
K. M. Schaefer, Counsel
INTRODUCTION
The Veteran served on active duty from June 1989 to June 1998.
This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from November 2009, January 2010, and September 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.
In her August 2010 and March 2013 VA Forms 9, the Veteran requested a personal hearing before a Veterans Law Judge. She subsequently withdrew that request. As no further communication from the Veteran with regard to a hearing has been received, the Board considers her request for a hearing to be withdrawn. See 38 C.F.R. §§ 20.702(d), (e); 20.704(d), (e) (2014).
The issues of entitlement to service connection for chest pain and a genitourinary disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDINGS OF FACT
1. Bilateral pes planus with a history of plantar fasciitis is manifested by mild to moderate flatfeet causing pain, including accentuated pain and use and with orthotics.
2. GERD is productive of pyrosis and reflux.
3. Seborrheic dermatitis is productive of symptoms that require topical treatment only and that do not result in at least 5 percent of the exposed skin to be affected.
4. The Veteran's periodontal disease is not manifested by bone loss of the mandible or maxilla due to trauma or osteomyelitis, with all upper or lower anterior teeth missing or all upper and lower teeth on one side missing.
5. A November 1998 rating decision denied the claim of entitlement to service connection for chest pain and a cervix disability, and the decision was not appealed.
6. Evidence received since November 1998 decision is new, relates to an unestablished fact necessary to grant the claims, and raises a reasonable possibility of substantiating the Veteran's claims of entitlement to service connection for chest pain and a cervix disability.
CONCLUSIONS OF LAW
1. The criteria for a rating in excess of 10 percent for bilateral flat feet have not been met. 38 U.S.C.A. § 1155, 5103A, 5107 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2014).
2. The criteria for a rating in excess of 10 percent for GERD have not been met. 38 U.S.C.A. § 1155, 5103A, 5107 (West 2014); 38 C.F.R. § 4.114, Diagnostic Code 7399-7346 (2014).
3. The criteria for a compensable rating for seborrheic dermatitis have not been met. 38 U.S.C.A. § 1155, 5103A, 5107 (West 2014); 38 C.F.R. § 4.118, Diagnostic Code 7899-7806 (2014).
4. The criteria for the assignment of a compensable evaluation for periodontal disease have not been met. 38 U.S.C.A. § 1155, 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.7, 4.97, Diagnostic Codes 9999-9913 (2014).
5. The November 1998 rating decision is final. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1991); currently, 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2014).
6. Evidence submitted to reopen the claim of entitlement to service connection for chest pain is both new and material; the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156(a) (2014).
7. Evidence submitted to reopen the claim of entitlement to service connection for a cervix disability is both new and material; the claim is reopened. 38 U.S.C.A.
§§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156(a) (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. VA's Duties to Notify and Assist
In this decision, the Board grants the Veteran's claims to reopen previously denied claims for service connection for chest pain and a cervix disability. Therefore, no discussion of VA's duty to notify or assist is necessary with respect to those issues.
Regarding the increased rating claims, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA letters issued in May 2009 and April 2011 satisfied the duty to notify provisions with respect to increased rating claims.
Accordingly, the Board determines that the content requirements of VCAA notice have been met and the purpose of such notice, to promote proper development of the claims, has been satisfied. Mayfield, 444 F.3d at 1333. Based on the above, the Board finds that further VCAA notice is not necessary prior to the Board issuing a decision.
VA has also fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claims. The Veteran's VA medical records, private treatment records, and the reports of September 2009, June 2011, July 2011, and August 2013 VA examinations were reviewed by both the AOJ and the Board in connection with adjudication of the claims. The Veteran has not identified any additional records that VA needs to obtain to ensure an equitable disposition to the claims.
With regard to the VA examinations, the Board notes that once VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In this case, each examiner documented the Veteran's subjective complaints and medical history, and evaluated the Veteran. Thereafter, in the reports they provided an assessment of the Veteran's symptoms and diagnosis that was sufficient to be a basis for determining the appropriate disability ratings. None of the examiners reports review of the claims file, although some indicate review of electronic treatment notes. Nevertheless, the absence of claims file review alone does not render an opinion inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). Nothing suggests that any examiner documented findings inconsistent with the medical history outlined in the claims file or not representative of the Veteran's symptomatology; therefore, the Board finds the VA examination reports in this case adequate for rating purposes.
In light of the above, the Board concludes that the evidence of record is sufficient to adjudicate the Veteran's claims without further development and additional efforts to assist or notify the appellant in accordance with VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant). Therefore, the Board determines that the Veteran will not be prejudiced by the Board proceeding to the merits of the claims.
II. Increased Rating Claims
Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2014). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10.
In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14.
In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the "present level" of the Veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where VA's adjudication of an increased rating claim is lengthy, a claimant may experience multiple distinct degrees of disability that would result in different levels of compensation from the time the increased rating claim was filed until a final decision on that claim is made. Thus, VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending. Hart v. Mansfield, 21 Vet. App. 505 (2007).
Where there is a question of which of two rating evaluations shall be applied, the higher evaluation will be assigned if the disability picture more closely approximates the criteria for that rating. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3.
Regulations provide that, when the disability being rated is not specifically provided for in the rating schedule, it will be rated under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. Further, the provisions of 38 C.F.R. § 4.27 provide that unlisted disabilities requiring rating by analogy will be coded with the first two numbers of the schedule provisions for the most closely related body part and "99." Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. The additional code is shown after a hyphen.
Bilateral Pes Planus
Under Diagnostic Code 5276, for acquired flatfoot, a 10 percent rating is assigned where flatfoot is moderate, with weight-bearing line over or medial to the great toe, inward bowing of the tendo Achilles, pain on manipulation and use of the feet, either bilateral or unilateral. For severe flatfoot with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities, 20 and 30 percent ratings (unilateral and bilateral, respectively) are assigned. For pronounced flatfoot with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achilles on manipulation, not improved by orthopedic shoes or appliance, 30 and 50 percent ratings (unilateral and bilateral, respectively) are assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5276.
Under Diagnostic Code 5284, for foot injuries, other, a 10 percent disability rating is provided for a "moderate" foot injury. A 20 percent disability rating is provided for a "moderately severe" foot injury. A 30 percent disability rating is provided for a "severe" foot injury. The Note to Diagnostic Code 5284 indicates that a maximum 40 percent rating will be assigned for actual loss of use of the foot. 38 C.F.R. § 4.71a.
The Veteran was afforded three foot examinations during the appeal period, in September 2009, July 2011, and August 2013. VA treatment records do not reflect complaints or treatment that demonstrates greater severity than found on VA examination.
In September 2009, the Veteran identified symptoms of pain along the arches of both feet since military service. Palpation of both feet revealed mild plantar fasciitis, and the examiner noted loss of arch with weight bearing bilaterally. There were no other deformities or disabilities of the feet or toes found. The Veteran reported using orthotics without benefit. The examiner diagnosed mild bilateral pes planus and mild bilateral plantar fasciitis.
The July 2011 VA examiner observed, pain, stiffness, and numbness/tingling in the arches and toes. There was swelling, but no weakness, or instability. The Veteran reported that she used orthotics, but received no relief. The examiner diagnosed mild to moderate pes planus with moderate plantar calcaneal tuberosities, mild hallux valgus deformities with mild prominence of the medial first metatarsal heads, and narrowing of the first cuneiform metatarsal joints, and the third cuneiform metatarsal non-osseous coalitions.
In August 2013, the examiner diagnosed plantar fasciitis. The examiner documented pain accentuated with use, but not swelling, calluses, or pain manipulation of the feet. No deformities or malalignment were observed. There was no relief due to orthotic use.
The Veteran receives regular VA podiatric treatment, but treatment notes do not reflect any symptoms or manifestations not found at VA examination. The 10 percent rating contemplates the Veteran's mild to moderate flatfeet, including her pain, even with the use of orthotics. While the Veteran does exhibit accentuated pain with use, this symptom alone does not represent a more than moderate disability. A rating in excess of 10 percent is not warranted without also marked deformity, pain on manipulation, indication of swelling on use, or characteristic callosities, or a moderately severe foot injury. These manifestations are not present in this case. Therefore, the Board determines that the Veteran's bilateral pes planus does not more closely approximate the criteria for a rating in excess of 10 percent.
Further, the Board has also considered whether a separate rating is warranted under other various foot diagnostic codes. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, as the Veteran's symptoms do not reflect weak feet, claw foot, hallux rigidus, hammer toes, malunion or nonunion of metatarsal bones or other foot injuries, ratings under Diagnostic Codes 5277, 5278, 5279, 5281, 5282, 5283, and 5284 are not supported by the evidence. 38 C.F.R. § 4.71a (2014). While the July 2011 examiner found mild hallux valgus, a compensable rating for hallux valgus is not warranted unless it has been operated. 38 C.F.R. § 4.71a, Diagnostic Code 5280 (2014). As such, a review of the record fails to reveal any additional functional impairment associated with the Veteran's foot disability so as to warrant application of alternate rating codes.
GERD
The Veteran's GERD has been rated under Diagnostic Codes 7399-7346 for disability associated with hiatal hernia. Under this diagnostic code, a 10 percent rating is warranted when there is a hiatal hernia with two or more of the symptoms for the 30 percent evaluation of less severity. 38 C.F.R. § 4.114, Diagnostic Codes 7399-7346. A 30 percent disability evaluation is contemplated for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. Id. A 60 percent rating is warranted with symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health.
The September 2009 VA gastrointestinal examiner documented a history of abdominal pain without pain at present. The Veteran reported esophageal reflux for which she took over-the-counter medication. There had been no significant weight loss or periods of incapacitation. The examiner diagnosed mild GERD. An abdominal scar was noted as being related to surgery for an ulcer.
At the August 2013 VA examination, the examiner diagnosed GERD and hiatal hernia that caused heartburn and reflux. There was no anemia, weight loss, nausea, vomiting, hematemesis, or melena or other pertinent symptoms.
The Veteran's treatment notes do not report symptoms more severe than those found on VA examination. The 10 percent rating assigned contemplates the hiatal hernia with pyrosis and reflux. A rating in excess of 10 percent requires these symptoms, as well as substernal or arm or shoulder pain and productive of considerable impairment of health. Id. As such manifestations are not present, the Board determines that the criteria for a rating in excess of 10 percent are not more closely approximated, and such a rating is not warranted.
Seborrheic dermatitis
The Veteran's skin disability has been assigned a noncompensable initial rating pursuant to 38 C.F.R. § 4.118, Diagnostic Codes 7899-7806 (2014). The Veteran contends that her symptomatology warrants a compensable rating.
Diagnostic Code 7806 provides a noncompensable evaluation for dermatitis or eczema involving less than 5 percent of the entire body, or less than 5 percent of exposed areas affected, and no more than topical therapy was required during the prior 12-month period. A 10 percent disability evaluation is assigned if there is dermatitis or eczema of at least 5 percent of the entire body, but less than 20 percent of the entire body, or at least 5 percent, but less than 20 percent of the exposed affected areas, or intermittent systemic therapy, such as corticosteroids or other immunosuppressive drugs were required for a total duration of less than six weeks during the prior 12-month period. See 38 C.F.R. § 4.118, Diagnostic Code 7806 (2013). For the next higher 30 percent disability evaluation, there must be dermatitis or eczema over 20 to 40 percent of the body or 20 to 40 percent of the exposed areas affected, or systemic therapy, such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly during the prior 12-month period. Id.
Three VA examinations of the Veteran's skin disability were conducted. At the September 2009 skin examination, the examiner documented the Veteran's history of seborrhea on her face for several years, as well as her various prescription topical treatments. The examiner observed mild scattered facial acne, but no lesions of seborrhea or pustules and no scarring or disfigurement. The diagnosis was mild acne.
The findings at the July 2011 VA examination were the same as at the September 2009 VA examination. All treatments were noted to be topical.
Finally, at the August 2013 VA examination, the examiner indicated that the percentage of total body area and total exposed area affected by the service-connected disability was none. The use of topical corticosteroids was noted to be six weeks or more, but not constant. The use of other topical medications was described as constant or near-constant.
The Veteran's skin disability affects less than 5 percent of her exposed skin and requires only the use of topical therapy. These manifestations warrant a noncompensable rating. A compensable rating requires that at least 5 percent of the exposed skin be affected and at least intermittent systemic therapy be used. These requirements are not met, and therefore, the Board finds that a compensable rating is not supported by the evidence.
Periodontal disease
The Veteran's periodontal disease is rated noncompensably under 38 C.F.R.
§ 4.150, Diagnostic Codes 9999-9913. Under Diagnostic Code 9913, for the loss of teeth due to loss of substance of the body of the maxilla or mandible without loss of continuity, a 0 percent rating is warranted where the loss of masticatory surface can be restored by a suitable prosthesis. A 10 percent rating is assigned when all upper anterior teeth are missing, all lower anterior teeth are missing, or all upper and lower teeth on one side are missing and cannot be restored by a suitable prosthesis. 38 C.F.R. § 4.150, Diagnostic Code 9913 (2013).
Ratings under Diagnostic Code 9913 are only warranted for bone loss through trauma or disease such as osteomyelitis and not for the loss of the alveolar process as a result of periodontal disease, since such loss is not considered disabling. 38 C.F.R. § 4.150, Diagnostic Code 9913, Note (2014). The Veteran's periodontal disease is service-connected only for the purpose of eligibility for dental treatment.
Two VA dental examinations were conducted, one in June 2011 and one in August 2013. At neither examination did the evidence reveal bone loss due to trauma or disease such as osteomyelitis. Loss due to periodontal disease is not considered disabling, and a compensable rating is not available. Thus, the Veteran's periodontal disease continues to be service-connected for dental treatment purposes only, and a compensable rating is denied.
Extra-schedular rating and Total Disability Rating due to Individual Unemployability (TDIU)
Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient. See 38 C.F.R.
§§ 4.20, 4.27 (2014). However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. However, in exceptional cases where the rating is inadequate, it may be appropriate to assign an extra-schedular rating. 38 C.F.R. § 3.321(b) (2014).
The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate, a task performed either by the RO or the Board. Id; see Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (2009); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.
The Veteran's bilateral feet disability, GERD, and skin disability manifest in ways contemplated by the rating schedule. The rating schedule provides disability ratings on the basis of pain, reflux and pyrosis, and skin symptoms and treatment. 38 C.F.R. § 4.71a, Diagnostic Code 5276; 38 C.F.R. § 4.114, Diagnostic Code 7346; 38 C.F.R. § 4.118, Diagnostic Code 7605. Thus, there is nothing exceptional or unusual about the Veteran's service-connected disabilities because the rating criteria reasonably describe her disability level and symptomatology. Thun, 22 Vet. App. at 115. As periodontal disease is not eligible for disability compensation, an extra-schedular rating is not for consideration.
Further, with respect to the second Thun element, the evidence has not suggested that "related factors" are present. The record reveals that the Veteran is employed, and also that the service-connected disabilities on appeal do not interfere with her employment. In addition, the record does not establish that her service-connected disabilities have required hospitalization so as to render impractical the application of the regular schedular standards. Therefore, an extra-schedular rating for pes planus, GERD, seborrheic dermatitis, and periodontal disease is denied.
Further, the Board notes that under Johnson v. McDonald, 762 F. 3rd 1362 (2014), a Veteran may be awarded an extra-schedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. However, in this case, after applying the benefit of the doubt under of Mittleider v. West, 11 Vet. App. 181 (1998), there are no additional service-connected disabilities that have not been attributed to a specific service-connected condition. Accordingly, this is not an exceptional circumstance in which extra-schedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions.
Finally, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for TDIU claim is part and parcel of an increased-rating claim when raised by the record. The Board has jurisdiction to consider the Veteran's possible entitlement to a TDIU rating in this circumstance when the TDIU issue is raised by assertion or reasonably indicated by the evidence and is predicated at least in part on the severity of the service-connected disability in question, regardless of whether the RO has expressly addressed this additional issue. See VAOPGCPREC 6-96 (Aug. 16, 1996); see also Caffrey v. Brown, 6 Vet. App. 377 (1994); Fanning v. Brown, 4 Vet. App. 225, 229 (1993); EF v. Derwinski, 1 Vet. App. 324 (1991). In this case, the Veteran has not claimed entitlement to TDIU, and the record does not suggest that the Veteran is unemployable due to service-connected disability. Therefore, the Board finds that further consideration of a TDIU rating is not warranted.
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). However, as reflected by the above discussion, the preponderance of the evidence is against the Veteran's claims of entitlement to higher ratings for her bilateral pes planus, GERD, seborrheic dermatitis, and periodontal disease. Therefore, her claims must be denied.
III. New and Material Evidence
A November 1998 rating decision denied a claim of entitlement to service connection for chest pain and a cervix disability on the basis that there was no evidence of a chronic disability incurred in or aggravated by military service. The Veteran did not appeal this decision. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 201.1103 (1998); currently, 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2014).
Generally, a claim which has been denied in an unappealed or final RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. The Court has held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010).
New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). New and material evidence need not address each previously unproven element of a claim to be sufficient to reopen the claim. Shade, 24 Vet. App. at 120.
For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992).
The Veteran contends that she had chest pain in service that is associated with current cardiac disease and that her genitourinary disabilities first manifested in service. The evidence of record in November 1998 consisted of the Veteran's service treatment records and her personal statements. Since that time, private treatment records showing diagnosis and treatment of cardiovascular disease and various genitourinary disabilities, including uterine fibroids, have been received. This evidence is new in that it was not of record in November 1998, and it is material in that it addresses the unestablished fact of current chronic disabilities. Thus, it raises a reasonable possibility of substantiating the claims. Accordingly, the Board finds that new and material evidence sufficient to reopen the claims of entitlement to service connection for chest pain and a cervix disability has been received, and the claims, to this extent only, are granted.
ORDER
Entitlement to a rating in excess of 10 percent for bilateral pes planus with a history of plantar fasciitis is denied.
Entitlement to a rating in excess of 10 percent for GERD is denied.
Entitlement to a compensable rating for seborrheic dermatitis is denied.
Entitlement to a compensable rating for periodontal disease is denied.
New and material evidence having been received, the claim for service connection for chest pain is reopened, and to that extent, the appeal is granted.
New and material evidence having been received, the claim for service connection for a cervix disability is reopened, and to that extent, the appeal is granted.
REMAND
The Board determines that a remand of the Veteran's service connection claims for chest pain and a genitourinary disability, to include a condition of the cervix, fibroid tumors, and irregular menstrual cycles. The RO reopened the Veteran's cervix disability claim in the August 2003 supplemental statement of the case, but it declined to reopen the chest pain claim. Generally, when the Board reopens a claim that the RO did not, the case must be remanded for RO consideration. Hickson v. Shinseki, 23 Vet. App. 394 (2010). Thus, as the Board herein reopened the claims, the issues must be remanded for the RO to contemplate the claims on the merits.
In addition, as indicated, the Veteran has submitted evidence that she is being treated for cardiac disease and for genitourinary disease. She is also competent to report readily observable symptoms, such as chest pains during and since service.
Therefore, she should be scheduled for VA examinations to assess the existence and etiology of any chest pain-related disability and a genitourinary disability. McLendon v. Nicholson, 20 Vet. App. 79 (2006).
With regard to her genitourinary disability, the Veteran was afforded a VA examination in December 2009. The examiner opined that it is less likely as not that the Veteran's complaints of abdominal pain and pelvic inflammatory disease in service were caused by current fibroids. However, the question is whether the current fibroids or any other genitourinary disability is causally or etiologically a result of disease, event, or injury in service. Therefore, the Board finds that the December 2009 VA opinion is inadequate and that another examination should be scheduled. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).
The record shows that the Veteran receives regular VA treatment. The most recent treatment note is dated in August 2013. Therefore, while the appeal is in Remand status, all treatment notes for the Veteran dated from August 2013 to the present should be added to the claims file. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file).
Accordingly, the case is REMANDED for the following actions:
1. Obtain all VA treatment notes dated from August 2013 to the present. All requests and responses, positive and negative, must be documented in the claims file.
2. Schedule the Veteran for the appropriate VA examination to assess the existence and etiology of a chest pain-related disability, including a cardiac disability. The claims file must be made available for review in conjunction with the examination. Upon review of the record, including the Veteran's lay statements throughout the claims file regarding her symptoms and medical history, the examiner should respond to the following:
Is it at least as likely as not (i.e. a 50 percent probability or more) that any diagnosed cardiac disability, or other chest pain-related disability, began in service, was caused by service, or is otherwise related to service?
The term "at least as likely as not" does not mean within
the realm of medical possibility, but rather that the
medical evidence both for and against a conclusion is so
evenly divided that it is as medically sound to find in
favor of a certain conclusion as it is to find against it
A complete rationale must be provided for any opinion
offered.
3. Schedule the Veteran for the appropriate VA examination to assess the existence and etiology of a genitourinary disability. The claims file must be made available for review in conjunction with the examination. Upon review of the record, including the Veteran's lay statements throughout the claims file regarding her symptoms and medical history, the examiner should respond to the following:
Is it at least as likely as not (i.e. a 50 percent probability or more) that any diagnosed genitourinary disability began in service, was caused by service, or is otherwise related to service?
The term "at least as likely as not" does not mean within
the realm of medical possibility, but rather that the
medical evidence both for and against a conclusion is so
evenly divided that it is as medically sound to find in
favor of a certain conclusion as it is to find against it
A complete rationale must be provided for any opinion
offered.
4. Notify the Veteran that it is her responsibility to report for all examinations and to cooperate in the development of the claims. The consequences for failure to report for any VA examination without good cause may include denial of one or more of the claims. See 38 C.F.R.
§§ 3.158, 3.655 (2014).
5. After completing the above development, and any other development deemed necessary, readjudicate the issues on appeal. If any benefit sought remains denied, provide a supplemental statement of the case to the Veteran and her representative and return the appeal to the Board for appellate review.
The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
______________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs